Legislature to meet in special session to define powers of panel on Swallow

By Robert Gehrke The Salt Lake Tribune

Published July 13, 2013 8:54 pm

On Wednesday, lawmakers will clarify the subpoena procedures and decide if closed-door testimonies are allowed.

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The Utah Legislature will meet in a special session Wednesday to clarify the powers of a special House committee investigating Attorney General John Swallow and create exemptions allowing some of the panel's work to be done behind closed doors.

Gov. Gary Herbert issued the call for the special session Friday evening to resolve potential confusion about the House investigation's subpoena powers and the applicability of open-meetings and records laws to the committee's work.

The Republican-led House unilaterally called itself into session last week, voting 69-3 to create the nine-member panel to examine allegations of misconduct by Swallow during his time in office since January as well as his stints as chief deputy attorney general and as a candidate for the state's top cop post.

But House Majority Leader Brad Dee, R-Ogden, said that as lawyers looked at the process the committee would follow, issues arose about the chair's authority to issue subpoenas, the panel's ability to grant immunity to witnesses and whether the committee could hire counsel from outside the state.

"The call comes in part at the request of the House to ensure that our new investigative committee has all the tools needed to conduct a thorough and fair investigation of the allegations surrounding the state's attorney general," House Speaker Becky Lockhart, R-Provo, wrote Friday in an email to House members.

There were also questions regarding how open-meetings laws would apply to the newly formed investigative panel.

"The committee needs certain records and open-meetings exemptions to properly conduct interviews and gather information," she wrote. "These powers are essentially the same as afforded any investigation into sensitive matters."

The proposed change in law would allow a majority of the committee members to close a meeting to discuss strategy, get legal advice or question witnesses  if such questioning in public could hamper a criminal investigation.

It also would allow witness interviews, documents reflecting committee members' impressions of the probe, and records reflecting the investigative strategy, as well as other records that might hamper the inquiry to be exempt from open-records laws until after the committee completes its work.

"I'm still of the mind, and I think our leadership team is [of the mind] â¦ that, where possible, these things will be completely open," Dee said. "I don't think there's any desire â¦ that we would be taking anything that should be open and couching it as private without it indeed being a private matter."

Attorneys for news media outlets were consulted and helped craft the open-meetings and records exemptions and were supportive of them, Lockhart said.

Mike O'Brien, an attorney for The Salt Lake Tribune, said legislators asked media lawyers to review a draft bill and "significantly narrowed" the exceptions to the open meetings and records laws based on their feedback.

"The final bill provides for reasonable closure based on the needs of the investigation," he said. "We think the drafters struck a balance between open government and the unique nature of this investigation."

Democrats said Friday that the process needs to be as transparent and open to the public as possible.

"The office of the attorney general belongs to the people of Utah, not the Republican Party, and a balanced, accountable committee, open to public view, is critical for success," Utah Democratic Party Executive Director Matt Lyon said in a news release. "Utah Democrats hope that the changes â¦ to our open-meeting laws will not create loopholes that allow the investigation to occur in the backrooms of the Republican caucus."

Swallow, who is a Republican, is under investigation by federal, state and county officers. He faces a range of allegations, including accusations that he helped broker a bribe to a U.S. senator and received improper gifts.

He has denied wrongdoing and has pledged to cooperate with the committee.

The House sent a nationwide solicitation Wednesday to law firms, law schools and other attorneys as it seeks to hire legal counsel to work with the Legislature's own attorneys on the committee. That counsel is expected to be hired by Aug. 9.

One of the changes to the law would allow an out-of-state attorney to practice law in Utah in conjunction with the Legislature's lawyers  similar to the process used by the courts.

Dee said that, given the nature of the Utah legal community and the ethics complaints against Swallow pending before the Utah State Bar, it may be best if the legal counsel hired by the House comes from outside the state.

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